Sunday, 25 January 2015

Leicester Business sued for Copyright Infringement: McCormack Training Ltd v Goldmark Training Services Ltd and Another

Jane Lambert














In McCormack Training Ltd v Goldmark Training Services Ltd and Others [2015] EWHC 41 (IPEC) McCormack Training Ltd of Birmingham sued Goldmark Training Ltd and its director Ruth Goldsworthy ("Mrs Goldsworthy") of Leicester for copying a training manual used to teach nightclub bouncers and other security personnel how to exert physical restraint. The alleged copy was a manual used by the defendants called the "HZL Hostile and Hazardous Environment Training".  The claimant company was represented by Gateley LLP who instructed Charlotte Scott as counsel. The defendants were represented by Mr Scott Farmsworth who appears to have acted as both litigator and advocate.

The McCormack manual consisted of text and photos of individuals carrying out various physical restraints. The photos had been taken at an hotel in Birmingham in 2009 at the instigation and under the direction of one Andy McCormack ("Mr McCormack") who was the sole shareholder and director of the claimant company. There was no dispute that copyright subsisted in those photos and that those copyrights had been assigned to McCormack Training Ltd. The defendants claimed to have been licensed by the claimant to use those photos. The text was created after the photos and the parties disputed w hether it was written by Mr McCormack or Mrs Goldsworthy. The claimant company also argued that the combination of words and photos created a dramatic work.  Mrs Goldsworthy and Goldmark Trading denied copying and argued that dramatic copyright could not subsist in those works as a matter of law.

This case turned on its facts but the problem for Judge Hacon who tried the case was that he could not rely on either Mr McCormack or Mrs Goldsworthy and her brother Ian Fox who was also a director of the defendant company. He described Mr McCormack as "a garrulous witness who was often imprecise about dates and other details and was inclined to respond to questions by delivering argument rather than answering the question put to him." He found "Mr Fox and Mrs Goldsworthy were more self-controlled, but equally unsatisfactory as witnesses."

Relying largely on extrinsic evidence the judge concluded that there was no licence to copy the photos but that Mrs Goldsworthy was the author of the text. As McCormack's could not claim copyright in the text any claim for infringement of dramatic copyright had to refer to the photographs. Because one photograph of a dramatic work in progress could not constitute a record of that work such as to give rise to copyright in it as a dramatic work, copyright could not subsist in any of the sequences. His Honour added at paragraph [90]:
"Since one photograph of a physical restraint technique does not record the technique as a dramatic work, a collection of such photographs cannot record a sequence of techniques such as to create copyright in the sequence as an overall dramatic work. Moreover, there was no suggestion that the techniques had to be 'performed' in any fixed sequence. In my view an arbitrary sequence of physical restraint techniques, one possible sequence in many, could not collectively constitute a dramatic work."
The upshot was that the claim succeeded in respect of the photos but failed in respect of the literary and dramatic works.

The claimant had sought additional damages under s.97 (2) of the Copyright, Designs and Patents Act 1988. Referring to his decisions in Henderson v All Around The World Recordings Limited [2014] EWHC 2087 (IPEC) and DKH Retail Limited v H. Young (Operations) Limited [2014] EWHC 4034 (IPEC) which I discussed in Inquiries as to Damages in the Intellectual Property Enterprise Court: Henderson v All Around the World Recordings Ltd. 6 Nov 2014 NIPC Law and What is the definition of "design" in s.213 (2) of the Copyright, Designs and Patents Act 1988 following the deletion of "any aspect of" from the sub-section 13 Dec 2014 the judge held that additional damages were available only in accordance with art.13 (1) of Directive 2004/48/EC on the enforcement of intellectual property rights. In his judgment none of the circumstances for awarding additional damages applied to this case.

Should anyone wish to discuss this note or copyright in general he or she should call me on 0115 824 9090 during normal office hours or use my contact form.

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